Copyright Infringement or Fair Use for the House Judiciary Committee?

Who knew that 1, 2,or 3 seconds of video, taken out of context, could cause such an issue? Certainly the House Judiciary Committee didn’t. The Committee’s recent press release has caused quite a stir on the Internet given its use of ten animated GIFs.

A GIF (or Graphics Interchange Format), as defined by Webster, is “a computer file format for the compression and storage of digital video images.” Make sense? Most people can probably recognize a GIF better than they can define what it means. To most people, a GIF is a short video clip (usually from a movie or TV show), that has been taken out of context, and used to make a joke.

Until recently, you’ve probably not given a second thought to GIFs, finding the floating cats in space quite humorous, but now the House Judiciary Committee is under fire for using 10 different GIFs from movies and TV shows in their newest press release.

The problem? All of the TV shows and movies are copyrighted by other people (not the House Judiciary Committee).

The 4 Primary Factors of Fair Use

So does that mean the House Judiciary Committee is infringing on their copyrights (specifically their exclusive rights to copy and distribute their copyrighted works)?

Let’s take this from the top down, to see if—even if the House Judiciary Committee is copying—it is justifiable or permissible. The entire situation conjures up a question of “fair use,” which comes into play on the balance of four primary factors:

1. The purpose and character of the use

Was the use a verbatim copy or a transformative use? A use is transformative when the user recasts the work in a different context such that it has a new meaning or new value( e.g. a photograph printed in a newspaper as part of a headlining story). This factor also considers whether the use is commercial or noncommercial.

2. The nature of the copyrighted work

Was it factual or fictional? Published or unpublished?

3. The amount and substantiality of the portion taken

In many cases, less is more, unless the less involves the “heart,” or most memorable, part of the work.

4. The effect of use upon the potential market

Does the use deprive the copyright owner of income or a potential market for the work?

The big thing with these factors is no two fair use cases are the same, and thus, there is no bright line rule to say if the use is truly “fair use” or not. Any user has to be careful to be sure that their use is indeed “fair.”

Is This Copyright Infringement or Fair Use for the House Judiciary Committee?

Keeping each of these four factors in mind, does it seem that the House Judiciary Committee met each factor? I would say it fits quite well:

Was it transformative? I say yes. Each of the GIFs used puts the clips in a different context, adding a level of (attempted) humor.

Was it noncommercial? The Committee was definitely promoting an agenda, but it was not using the GIFs for commercial purposes in the copyright context.

What is the nature of the work? All were published fictional works.

How much was taken? Just a tiny bit. Considering each is only about 1-3 seconds long, it sure seems tiny to me.

Does it have a minor effect on the market? Yes, these certainly don’t deprive the movie or TV show producers of any income, and they don’t detract from or create a new market for them.

Even if the use of these GIFs was in bad form, it may have been “fair” to use them.

You may be thinking, “Regardless of all of this, the House Judiciary Committee is part of the government, so don’t they get a pass on all of this?” The answer is no. While the United States government cannot own a copyright interest in anything it produces (meaning that anything from the U.S. Government is public domain), it and its employees must still respect the copyrights of others. After all, the government passed the very law that created copyrights in the first place! Congressmen and women aren’t above the law.

Although this case appears to be a clear instance of fair use, what would happen if it wasn’t? It could get pretty complicated to try and sue a member of Congress privately for something he or she did in a professional capacity.

What about the websites that provide the platform for creating the GIFs? Should copyright owners be able to go after the sites that provide the platform for creating and publishing the GIFs on the basis that they contributed to the infringement? This is where the Digital Millenium Copyright Act comes into play. If the sites (like Tumblr, Quora, and others) meet the requirements set out in the DMCA’s safe harbor provisions for online service providers, then they will be shielded from legal liability. For example, read Tumblr’s Policy Statement regarding the DMCA Copyright Policy.

Overall, though, there are few important things to consider when dealing with copyrighted content. Any time you or anyone you know uses copyrighted content, it is technically copyright infringement. This includes creating GIFs. But sometimes it can be a justifiable infringement under the “fair use” doctrine if it passes the four factor balancing test.

The Takeaway

Always be mindful of whether or not you have the permission to use the content. Ask yourself:

Do I have permission via a license (either formally or informally)?;

Do I have permission because the content transferred (assigned) to me?; or

Even though I don’t have permission, is the use permissible based on the principles of fair use?

If you can’t answer yes to at least one of those three questions, you probably shouldn’t be using the content.

Kelley Keller, Esq. is an intellectual property (IP) attorney, speaker, and educator with two decades of experience in the IP field.
Through Innovation to Profits, she works with individuals and businesses in a wide variety of industries helping them transform their ideas, knowledge, and innovation into valuable business assets that drive profits.
Kelley offers education, coaching, and consulting to established businesses, startups, entrepreneurs, corporate executives, non-profits, government agencies, legal professionals, and students about IP and social media law as well as the importance of protecting valuable brand assets and creative work.